Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees

from the about-time dept

Happy Birthday remains the most profitable song ever. Every year, it is the song that earns the highest royalty rates, sent to Warner/Chappell Music (which makes millions per year from "licensing" the song). However, as we've been pointing out for years, the song is almost certainly in the public domain. Robert Brauneis did some fantastic work a few years ago laying out why the song's copyright clearly expired many years ago, even as Warner/Chappell pretends otherwise. You can read all the background, but there are a large number of problems with the copyright, including that the sisters who "wrote" the song, appear to have written neither the music, nor the lyrics. At best, they may have written a similar song called "Good Morning to All" in 1893, with the same basic melody, but there's evidence to suggest the melody itself predated the sisters. But, more importantly, the owner of the copyright (already questionable) failed to properly renew it in 1962, which would further establish that it's in the public domain.

The issue, as we've noted, is that it's just not cost effective for anyone to actually stand up and challenge Warner Music, who has strong financial incentive to pretend the copyright is still valid. Well, apparently, someone is pissed off enough to try. The creatively named Good Morning to You Productions, a documentary film company planning a film about the song Happy Birthday, has now filed a lawsuit concerning the copyright of Happy Birthday and is seeking to force Warner/Chappell to return the millions of dollars it has collected over the years. That's going to make this an interesting case.

More than 120 years after the melody to which the simple lyrics of Happy Birthday to You is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy Birthday to You, and with that copyright the exclusive right to authorize the song's reproduction, distribution, and public performances pursuant to federal copyright law. Defendant Warner/Chappell either has silenced those wishing to record or perform Happy Birthday to You or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.

Irrefutable documentary evidence, some dating back to 1893, shows that the copyright to Happy Birthday to You, if there ever was a valid copyright to any part of the song expired no later than 1921 and that if defendant Warner/Chappell owns any rights to Happy Birthday to You, those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935. Significantly, no court has ever adjudicated the validity or scope of the defendant's claimed interest in Happy Birthday to You, nor in the song's melody or lyrics, which are themselves independent works.

Plaintiff GMTY, on behalf of itself and all others similarly situated, seeks a declaration that Happy Birthday to You is dedicated to public use and is in the public domain as well as monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected from GMTY and all other Class members.

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of "Good Morning to You," but also notes that the "happy birthday" lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called "happy birthday to you." They also point to a 1907 book that uses a similar structure for a song called "good-bye to you" which also notes that you can sing "happy birthday to you" using the same music. In 1911, the full "lyrics" to Happy Birthday to You were published, with a notation that it's "sung to the same tune as 'Good Morning.'" There's much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

The detail in the filing is impressive, and I can't wait to see how Warner/Chappell replies. As the filing notes, there are a variety of copyright claims around the song, but all are invalid or expired, and the very, very narrow copyright that Warner/Chappell might hold is not on the song itself. In other words, Warner/Chappell is almost certainly guilty of massive copyfraud -- perhaps the most massive in history -- in claiming a copyright it clearly has no right to.

If and to the extent that defendant Warner/Chappell relies upon the 1893, 1896, 1899, or 1907 copyrights for the melody of Good Morning to All, those copyrights expired or were forfeited as alleged herein.

As alleged above, the 1893 and 1896 copyrights to the original and revised versions of Song Stories for the Kindergarten, which contained the song Good Morning to All were not renewed by Summy and accordingly expired in 1921 and 1924, respectively.

As alleged above, the 1899 copyright to Song Stories for the Sunday School, which contained Good Morning to All, and the 1907 copyright to Good Morning to All were not renewed by Summy Co. before its expiration in 1920 and accordingly expired in 1927 and 1935, respectively.

The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All were forfeited by the republication of Good Morning to All in 1921 without proper notice of its original 1893 copyright.

The copyright to Good Morning to All expired in 1921 because the 1893 copyright to Song Stories for the Kindergarten was not properly renewed.

The piano arrangements for Happy Birthday to You published by Summy Co. 111
in 1935 (Reg. Nos. E51988 and E51990) were not eligible for federal copyright protection
because those works did not contain original works of authorship, except to the extent of the
piano arrangements themselves.

The 1934 and 1935 copyrights pertained only to the piano arrangements, not to
the melody or lyrics of the song Happy Birthday to You.

The registration certificates for The Elementary Worker and His Work in 1912,
Harvest in 1924, and Children's Praise and Worship in 1928, which did not attribute
authorship of the lyrics to Happy Birthday to You to anyone, are prima facie evidence that the
lyrics were not authored by the Hill Sisters.

And, now we await Warner/Chappell desperately trying to refute an awful lot of evidence that they've been engaging in millions of dollars worth of copyfraud year after year.

Re: Re: White Extinction

The only cattle I see are the brain-dead idiots who espouse this utter bullcrap. Look! People with human DNA did the same as other people with human DNA!

I think you missed the part where all humans, including those with a melanin deficiency (and in some cases, a brain deficiency) came from Africa.

I'm also pretty sure that, at the risk of Godwinning, that certain early-to-mid-20th Century dictators were also as melanin/brain-deficient as yourself and caused massive death and destruction, and I'm pretty sure that it was the melanin/brain-deficient types who were running slavery in the Western hemisphere.

Re:

i hope this is sorted out quickly and Warner/Chappell get stung in the same way as they have stung others. the other thing is, when will politicians realise that they need to move their loyalty from the bank accounts of the entertainment industries towards the people. if not, there is gonna be more shit for them to deal with!

Re:

That's because the politicians and the special interests are the same people. Rich people get themselves into office so they can collaborate with their rich friends in office to form legislation that is sympathetic to their own financial aspirations and business friends. Basically, rich people get into office and vote for laws that make them more money.

Re:

Copyfraud

They owe society so much they should just claim complete bankruptcy and put all their works in the public domain for the next 75 years or the life of the copyright on any work they have until the copyright runs out. Also every person that has received over the average wage has received stolen money so they should be forced to pay that money back to the people they stole it from, the average wage being 34 000 a year i believe

Re: Bravo

Warner is a member of the RIAA. Government stepping in to stop one of the backers of the very lucrative donor RIAA is pretty low. Warner will likely force a NDA-strapped settlement through, bow down fast if they feel they will loose or force a Pyrrhus victory for Good Morning To You Productions (read: Stall untill they go bankrupt). It is also possible they will try and fight to win.

In half the cases the primary answer from Warner is gonna be pretty irrelevant (Stall/settle). If they wanna bow down this is going to be a weak defence, trying to make their previous actions irrelevant to the current case (complete damage control). If they try to win, they will have to have some very convincing counter-arguments.

The only argument for government taking a stance is if Warner fights and loose the case.

Re: Re: Re: Bravo

Re: Re: Re: Re: Bravo

The interests of tech and the public interest are not necessarily mutually exclusive. The public benefits a lot from tech. Everyone, except parasite middlemen that contribute nothing, are generally harmed by excessive IP laws.

Re: Re: Re: Re: Re: Bravo

I've been thinking about doing the same thing with Steamboat Willie. Unfortunately, I don't have the money. I wonder where the GMTY people are getting their funds. Wherever they're getting it, I hope it doesn't run out. That will probably be Warner/Chappell's biggest tactic.

Re:

Warner's next move...

A modest contribution to certain members of Congress to correct this oversight. Simply extend the copyright retroactively (it's been done before). We obviously need to protect the artist's creativity!!!

Dear Judge

Time Warner respectfully submits to the court that Time Warner is not the correct party to be the defendant in this lawsuit.

Clearly this is all Google's fault.

First, Time Warner believes that the sisters did have copyright in 1983, but Google is failing to find it.

Second, Time Warner believes that the copyright was renewed in 1962, but again Google is failing to find it.

Third, Google was negligent in not having a large prominently labeled magic button entitled "Help Time Warner know which copyrights it owns".

Time Warner firmly believes in intellectual property, that it should own all of it, that nothing belongs in the public domain because that diminishes value, and that intellectual property of all kinds should last forever.

My best guess is the first 'counter argument' from Warner is going to be a nice hefty check, a nicely binding NDA, and hoping that the ones bringing the lawsuit can be bought off, because if that doesn't work things could get rather unpleasant for Warner here.

Whether or not they win the case isn't going to affect anyone here .... Why does it matter so much. Record companies do a huge amount if good for the recording industry and with music pirating of nowadays, some of the profits from that one song might be helping keep then afloat. I say why make such a fuss about it.

Re:

Let me get this straight:
- You think it's not a big deal if a record company scam millions per year in shady, extortion like deals
- You think it's ok to abuse the copyright system
- You think record companies do a huge amount of good (to who?), and deserve all the help they can get to stay afloat
- You think we actually need record companies (if they can't persist, then no, the marked do not need them.)
- You think music piracy is their main plight

Response to: George Bates on Jun 14th, 2013 @ 6:33am

Record companies barely pay the artists 1% of what they earn. They take advantage of talented people and protect their own interests with bribes and lawyers. People make much more money publishing their own music now.

I am far from an expert in this field, but won't Warners just dot he same thing Disney does--? Spend enough money to make a law that carves out happy birthday as a special case and then apply it retroactively?

re: ShanDreclin and this

I am just assuming...

This is a snowball thing. There is now so much money riding on it (particuarly disgorgement of illegally obtained fees) TW can't afford to *not* fight any attempt to invalidate the copyright - and given that, there is no additional cost (to them) of continuing to demand fees;

I suspect also that executives are either fooling themselves that they can somehow just declare HB to be public domain, tell the court the issue is moot (as it is now public domain) and walk away, should they be faced with a lawsuit like this one-or- Have a golden parachute deal where they can walk away with a big payoff and move to another equally abusive copyright maximalist, because after all, its the *company* that did this, not them, right?

Now if only they could suffer absurd statutory damages from it. Fine them a billion for every wrongful license seeking or lawsuit of their own they filed. Good for the goose is good for the gander, eh?

Happy birthday...

A short electronic cover of Happy Birthday. Just my way of showing support to those fighting against copyright maximalism and corporate appropriation of public domain works. And also to stick it to Warner...

I'd like to also encourage everyone with any musical talent to create their own cover versions of Happy Birthday and publish them... the more the better!

Payback

IMHO they owe millions in punitive damages as well for forcing us to have to put up with all the even more lame "Happy Birthday" variations they forced TGIF, O'Charlie's, Appleby's, etc. to create just to avoid what were fraudulent copyright violation threats.

There are two cases in which this party participated:1:13-cv-04040-LLS Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc. filed 06/13/13 closed 07/26/13and1:14-mc-00179-P1 Good Morning To You Productions Corp. et al v. Warner/Chappell Music, Inc. et al filed 06/06/14 closed 07/16/14

On the former, the docket report at https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?107084870436263-L_1_0-1 shows07/26/2013 3[RECAP] NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above-captioned action is voluntarily dismissed, without prejudice against the defendant(s) Warner/Chappell Music, Inc.. Document filed by Good Morning To You Productions Corp.. (Rifkin, Mark) (Entered: 07/26/2013)

On the latter the docket report at https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?677990991319645-L_1_0-1 shows 07/16/2014 14 ENDORSED LETTER addressed to Judge P. Kevin Castel from Mark C. Rifkin dated 7/15/2014 re: plaintiffs hereby withdraw their motion and notify the Court that neither party intends to appear in Part 1 for the hearing scheduled in this matter for tomorrow, 7/16/2014, at 2:00 p.m. ENDORSEMENT: The motion is withdrawn and the order to show cause terminated. (Signed by Judge P. Kevin Castel, Part I, on 7/15/2014) (tn) (Entered: 07/16/2014)

For your convenience I have ensured that everything I viewed was uploaded to RECAP. So you can view it free.

To repeat what I said twice before - there is no case anymore. It's been dismissed.

Re: Re: ECF/PACER details

Re: ECF/PACER details

My understanding is that it was dismissed in favor of (joined with?) Rupa Marya v. Warner Chappell Music Inc. That case looks active, but I don't have a PACER subscription to directly view information on it.

Re: Rupa Marya?

Two things

1) Unless you sing REALLY slowly, this is WAY under 30 seconds, so isn't it exempt under fair use?

2) Couldn't you just sing "Happy Birthday Mr. President" to everyone? Aside from a pretty clear case for the parody exception, you also get to call all your friends and loved ones "Mr. President" which HAS to be an upgrade from whatever their normal title is. Bonus points if it's girlfriend-to-boyfriend an you use a sultry voice.

Just saying. I mean I'm all for this to all the poor people who paid Warner can get their money back, but it's not like there aren't a myriad of creative ways to get around this copyright in particular.